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2004
Dissent and Disestablishment: The Church/State
Settlement of the New American Republic
Carl H. Esbeck
University of Missouri School of Law, [email protected]
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Part of the First Amendment Commons, and the Religion Law Commons
Recommended Citation
Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 B.Y.U. L. Rev. 1385
(2004)
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BRIGHAM YOUNG UNIVERSITY LAW REVIEW
province,"'
a jurisdictional restraint
that dates
[2004
to America's
disestablishment.
Indeed, the entire array of disestablishmentarian ideas appears in
the modern cases, albeit more secular sounding to suit modern
sensibilities. Consider, for example, Justice Stevens' majority opinion
in Wallace v. Jaffree,7' acknowledging that voluntaryism entails a
judgment about which faiths are worthy of respect:
[T]he Court has unambiguously concluded that the individual
freedom of conscience protected by the First Amendment embraces
the right to select any religious faith or none at all. This conclusion
derives support not only from the interest in respecting the
individual's freedom of conscience, but also from the conviction
that religious beliefs worthy of respect are the product of free and
voluntary choice by the faithful ....716
Similarly, in Engel v. Vitale7 17 the Court observed that once a
church is more responsive to the aims of the state than its own
calling, the religion loses the respect of a free-minded people:
[The Establishment Clause's] first and most immediate purpose
rested on the belief that a union of government and religion tends
to destroy government and to degrade religion. The history of
governmentally established religion, both in England and in this
country, showed that whenever government had allied itself with
one particular form of religion, the inevitable result had been that it
had incurred the hatred, disrespect and even contempt of those
who held contrary beliefs. That same history showed that many
people had lost their respect for any religion that had relied upon
the support of government to spread its faith. 71 s
If religious Americans, especially religious conservatives, have not
always been faithful to the church-state settlement that came out of
the period of state-by-state disestablishment, American liberals have
also lacked fidelity. The ready example of liberalism taking an illiberal
turn and attempting to drive the religious voice out of the public
714. See, e.g., Bryce, 289 F.3d at 656 ("[C]ourts reason that, unlike Smith, [494 U.S. 872
(1990)] the ministerial exception addresses the rights of the church, not the rights of
individuals."); Catholic Univ. ofAm., 83 F.3d at 462.
715. 472 U.S. 38 (1985) (overturning a state law requiring a moment of silence in public
schools for student prayer or meditation).
716. Id. at 52-53.
717. 370 U.S. 421 (1962) (striking down teacher-led prayer in public schools).
718. Id. at 431 (footnote omitted).
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square concerns equal access to public fora for speech of religious
content or viewpoint. The machinery of civil government should no
more be used to suppress the religious voice than to promote it. Yet
public officials in high numbers still persist in arguing that the
Establishment Clause requires that religious speech (especially
worship and proselytizing) be treated differently,719 and that religious
groups be discriminated against in public fora in municipal
buildings7 2 ° and public schools."' The sophistry of local officials is
that there is a "conflict" or "tension" between the Establishment
Clause, on the one hand, and the Free Speech and Free Exercise
Clauses, on the other hand. Compliance with the no-establishment
principle, they argue, provides the "compelling governmental
interest" that legitimates the government's discrimination against
religious speech.722
To the Supreme Court's credit, the religious claimants win all
these equal access cases.7"' The High Court, however, has had to
keep taking up these cases because of resistance in some of the
719. Distinctions between religious speech, on the one hand, and religious worship, on
the other hand, have been known to be unconstitutional since Widmar v. Vincent, 454 U.S.
263, 269 n.6, 272 nn.9, 11 (1981).
720. See, e.g., DeBoer v. Viii. of Oak Park, 267 F.3d 558 (7th Cir. 2001) (holding that
the village could not exclude National Day of Prayer meeting from public forum limited to
civic purposes).
721. See, e.g., Child Evangelism Fellowship v. Stafford Township Sch. Dist., No. 031101, 2004 U.S. App. LEXIS 21473 (3d Cir. Oct. 15, 2004) (holding that public school
teachers did have to distribute to students information on an after-school religious club
because teachers handed out similar information on after-school secular clubs and that the
Establishment Clause did not excuse such a refusal); Child Evangelism Fellowship v.
Montgomery County Pub. Schs., 373 F.3d 589 (4th Cir. 2004) (same); Rusk v. Crestview
Local Sch. Dist., 379 F.3d 418 (6th Cir. 2004) (same).
722. Those arguing a "collision" between the clauses distort the fundamental nature of
the Establishment Clause, which is not an individual right but a structural restraint on the
government's power. See supra text accompanying notes 6-10.
723. Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) (holding that a school
could not deny an elementary school Bible club the right to meet on the same terms as other
clubs); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995) (holding
that a state university could not deny student religious newspaper the right to funding on the
same terms as other student secular newspapers); Lamb's Chapel v. Ctr. Moriches Union Free
Sch. Dist., 508 U.S. 384 (1993) (holding that a school could not deny a church the right to
show films during the evening in school building on the same terms as other community
organizations); Bd. of Educ. v. Mergens, 496 U.S. 226 (1990) (upholding Equal Access Act in
face of Establishment Clause challenge); Widmar, 454 U.S. 263 (holding that a state
university could not deny a student religious organization access to facilities for meetings on
the same basis as other secular student organizations).
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federal circuits to following the Court's case law.7 24 The Court needs
to say, once and for all, that it is not possible for the Establishment
Clause to be in "conflict" with liberty,7 2 and thus the clause can
never be read to supply the "compelling interest" needed to override
free speech or free exercise rights. Moreover, one has to wonder: did
religious freedom prevail in these equal access cases only because the
religious claimants argued foremost the Free Speech Clause?
Certainly arguing free speech helped the religious claimants appear
less like special pleaders to liberal eyes. And liberals, most of them
anyway, will defend speech with which they do not agree, even
speech that is religious proselytizing. However, the basis for equal
access in these cases is more foundational: the institutional separation
of church and state was never intended to silence the church. Rather,
separation was to limit the power of the state and thereby afford
more breathing room for the church to be the church.7 26
Second, some insist that a religious exemption in regulatory and
tax legislation is unconstitutional.72 7 They would have religious
groups be treated like any other voluntary association. But the very
reason for causing religious organizations to be jurisdictionally
"separated" from government is to reduce conflicts between the two
and thereby to protect church autonomy. The word "exemption" is
merely the legislative rubric for accomplishing that deeper purpose.
Religious exemptions from regulatory or tax burdens do not violate
the Establishment Clause-they reinforce the desired distance
between church and state.72 Some voices argue to the contrary,
724. See, for example, the Supreme Court's scolding of a divided panel of the Second
Circuit in Good News Club, 533 U.S. at 109 n.3 ("We find it remarkable that the Court of
Appeals majority did not cite Lamb's Chapel, despite its obvious relevance to the case. We do
not necessarily expect a court of appeals to catalog every opinion that reverses one of its
precedents. Nonetheless, this oversight is particularly incredible because the majority's
attention was directed to it at every turn.").
725.
726.
See supra notes 8-10.
See supra text accompanying note 705.
727. See, e.g., Frederick Mark Gedicks, An
Unfirm Foundation: The Regrettable
Indefensibility of Religious Exemptions, 20 U. ARK. LITTLE ROCK L. REV. 555, 557 (1998) (1i
emphasize that I am not urging the abandonment of exemptions on the basis of a normative
argument, but rather for the pragmatic reason that they can no longer be justified with the
theoretical resources available in late 20th century legal culture.").
728. Corp. of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) (upholding an
exemption in Title VII of 1964 Civil Rights Act for religious organizations staffing on a
religious basis); Walz v. Tax Comm'n, 397 U.S. 664 (1970) (upholding a property tax
exemption for religious organizations); Zorach v. Clauson, 343 U.S. 306 (1952) (upholding a
release time program for students to attend religious classes off public school grounds);
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decrying cases such as Corporationof the PresidingBishop v. Amos. 29
and Walz v. Tax Commission,73 ° and aggressively overreading the
plurality opinion in Texas Monthly, Inc. v. Bullock."' However, a
Selective Draft Law Cases, 245 U.S. 366 (1918) (upholding, inter alia, military service
exemptions for clergy and theology students); see Gillette v. United States, 401 U.S. 437, 45060 (1971) (holding that a religious exemption from military draft for those who oppose all war
does not violate Establishment Clause).
729. 483 U.S. 327 (1987) (upholding as not violative of Establishment Clause a statute
exempting religious organizations from civil rights law that prohibited employment
discrimination on the basis of religion).
730. 397 U.S. 664 (1970) (upholding as not violative of Establishment Clause a statute
exempting religious organizations from property taxes).
731. 489 U.S. 1 (1989) (plurality opinion). In Texas Monthly, a three-justice plurality
struck down a state sales tax exemption available on purchases of sacred and other literature
promulgating religious faith as violative of the "secular purpose" requirement of the
Establishment Clause. Id. at 17. Justice White wrote separately because he believed that the
law was a content-based discrimination violative of the Free Press Clause. Id. at 26 (White, J.,
concurring). Justice Blackmun also wrote separately, joined by Justice O'Connor, holding
narrowly that "a tax exemption limited to the sale of religious literature by religious
organizations violates the Establishment Clause." Id. at 28 (Blackmun, J., concurring).
Portions of the three-justice plurality suggest the unconstitutionality of religious
exemptions from regulatory and tax burdens unless the scope of the exemption is broadened to
include a number of nonreligious groups that provide similar charitable or beneficent services.
See id. at 11-12. I do not think this states the law. First, the rationale of a three-justice
plurality is not controlling. Plurality opinions of the Supreme Court are not binding on lower
federal and state courts except on the narrow question decided. Indeed, just one year later a
majority of the Court in Employment Division v. Smith, 494 U.S. 872, 890 (1990), invited the
unsuccessful litigants to seek religion-specific exemptions from general regulatory laws by
going to the legislature. It would be disingenuous to commend legislative exemptions as an
avenue of relief for religious claimants if such exemptions, once secured from a legislature,
were unconstitutional.
Second, the three-justice plurality went out of its way to say that the opinion was not
contrary to two important cases generally upholding religious exemptions: Amos and Zorach.
Texas Monthly, 489 U.S. at 18 n.8. The plurality even opined that it would be constitutional if
the U.S. Air Force adopted a religious exemption from the military's rule on the wearing of
official head gear, albeit, such a rule is not required by the Free Exercise Clause. Id. at n.8.
Third, at one point the three-justice plurality suggested that the problem with the tax
exemption before it was that it was too narrow. The sales tax exemption favored sacred
writings and "writings promulgating the teaching of the faith," as opposed to all religious
writings. Id. at 5, 16 n.6. A religious exemption can be unconstitutionally narrow by favoring
some religious beliefs or practices over others. See Bd. of Educ. v. Grumet, 512 U.S. 687,
702-05 (1994) (striking down a law, inter alia, because it sought to relieve a burden from a
single religious sect); Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) (see the
Court's explanation of Estate of Thornton in Hobbie v. Unemployment Appeals Commission, 480
U.S. 136, 145 n.ll (1987)). If confined to this principle of law, the result in Texas Monthly is
consistent with the Court's case law elsewhere.
Fourth, at times the three-justice plurality characterized the sales tax as a benefit or
subsidy for the purchasers of these materials. Texas Monthly, 489 U.S. at 14-15. This is wrong;
it is an exemption from a tax burden. But if the tax law before the Court could have been
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government does not establish a religion by leaving it alone. The fact
that religion is left undisturbed when other organizations are
burdened by new regulations or taxes is a mere consequence of the
desired separation of these two authorities, church and state.
Third, illiberal liberalism is urging an erosion of the publicprivate distinction embodied in the "state action" doctrine." 2 The
aim is to impose on religious organizations receiving government
assistance the duty to be secular in the same sense that government
must be secular. They argue, for example, that a governmentfunded, faith-based provider of social services should be forced to
secularize its operations. This is not liberty of association. This is not
classical liberalism. This puts religious organizations to a cruel
choice: either forfeit their right to compete on an equal basis for
public funding to do social service work or recant the religious
beliefs that form their essential character.73 No other group,
regardless of its ideology, is asked to self-destruct in this way.
Under current law, religious organizations are not "state actors"
subject to constitutional duties merely because they successfully
compete for government grants as part of a neutral program of
education or social-service funding. 3 To bulldoze through the
public-private distinction and treat faith-based social-service
organizations receiving government assistance, as well as K-12
religious schools enrolling publicly aided students, as having the
same constitutional duties as the government would crush the
properly characterized as a benefit, then the Court would be correct to strike it down as a
financial benefit that favors religion over nonreligion.
732. See, e.g., MARTHA MINOW, PARTNERS, NOT RIVALS: PRIVATIZATION AND THE
PUBLIC GOOD (2002) (advancing author's own conception of democratic values as
constitutional norms, and then suggesting this designer democracy trumps historic First and
Fourteenth Amendment rights).
733. See Carl H. Esbeck, A ConstitutionalCasefor Governmental Cooperation with FaithBased Social Service Providers, 46 EMORY L.J. 1, 23-27 (1997) (explaining how church
autonomy is served by neutrality in government funding of social service providers, including
religious providers); Carl H. Esbeck, Statement Before the United States House of
Representatives Concerning Charitable Choice and the Community Solutions Act, reprinted in
16 NOTRE DAME J.L. ETHICS & PUB. POL'Y 567, 572-76 (2002) (defending the basis for
protecting the religious staffing rights of faith-based social service providers).
734. See Blum v. Yaretsky, 457 U.S. 991, 1002-12 (1982) (holding that pervasive
regulation and receipt of government funding at private nursing homes do not make nursing
home decisions state action); Rendell-Baker v. Kohn, 457 U.S. 830, 840-41 (1982) (holding
that private school heavily funded by state is not state actor); Flagg Bros. v. Brooks, 436 U.S.
149, 164 (1978) (stating that mere acquiescence by the law in private actions of warehouse
does not convert the acts by the warehouse into those of the state).
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institution's religious autonomy. That is not separation of church
and state. That is not the church-state settlement of the early
American republic. This debate is most prominent in relation to
religious staffing rights of social service providers and President
Bush's faith-based initiative.
What is needed by liberals and religious conservatives alike is
fidelity to the American church-state settlement. It is in the longterm interest of both. It is a win-win situation. One of the aims of
this modest paper is to help them to understand that this is so.
V. CONCLUSION
We have seen that the problem of religious freedom is usefully
subdivided by considering two relationships: the relationship
between nation-state and individual adherents and that between
nation-state and organized religion. In the West, since the fourth
century, the second relationship presumes a dual-authority pattern,
one of coexisting governmental and religious institutions, the former
with authority over the civil and the latter having its province over
the spiritual. For seventeen centuries now these two centers of
authority have at times competed and at times cooperated. While the
exact boundaries between the two remain conflicted, it is understood
that although the respective jurisdictions overlap at many points,
nevertheless there are subject matters over which the state has
sovereign power and subject matters over which the church has
exclusive authority. The First Amendment, with its doctrine of
church autonomy, is a recognition of the latter, namely, that the civil
courts have no subject matter jurisdiction over the internal affairs of
religious organizations.
It is not surprising that American jurisprudence, very much in
the stream of Western civilization, came to tacitly absorb this dualauthority pattern. The American colonialists brought with them a
variety of European models of church-state relations, almost all of
which entailed a state church. Over time, however, dissenters
remonstrated for greater religious freedom, first for free exercise of
conscience and then for disestablishment. The foregoing occurred as
society was moving away from authoritarian and toward republican
government. Meanwhile religious monopoly in America was
convulsed as interest in religion expanded during the First Great
Awakening (1720s-50s). These events worked together to make
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religious establishments vulnerable. In the Middle Colonies the
establishments faded before the War of Independence. In the
Southern states the Anglican establishments were set aside during the
War or within the decade thereafter. Another three decades passed
before the Congregational establishment came down in New
England. Thus the American disestablishment occurred over a fiftyto sixty-year period, from 1774 to the early 1830s. It introduced a
church-state settlement into the new republic that departed sharply
from anything known in Europe.
The American disestablishment was entirely a state-law affair.
Thus disestablishment was not a consequence of the War of
Independence. Moreover, disestablishment neither culminated with
the adoption of the Establishment Clause in the First Amendment of
1791, nor was disestablishment hastened along by it. That is,
contrary to widely held belief, the Establishment Clause did no
serious work whatsoever in the furtherance of disestablishment. The
reason is simple enough: in the early republic it was known and
appreciated that the Establishment Clause acted to bar the federal
government from interfering with how the states dealt with the
prickly matter of religion.
At the state level, where the work of disestablishment did take
place, the vast number of those pushing for it were not doing so out
of rationalism or secularism. Rather, they were religious people who
sought disestablishment for (as they saw it) biblical reasons. They
were allied in this effort by certain well-placed statesmen, most
notably James Madison. Together, they decried state establishments
as having the effect of corrupting religion, the clergy, and the
church. Second, they saw state involvement in religious creed and
forms of observance as unnecessarily dividing the body politic. They
believed that such inherently religious questions were never properly
within the state's role. By circumscribing the state's power and
thereby deregulating religion, the alliance sought a more limited
state, one without jurisdiction over church doctrine, forms of
observance, selection of clergy, and internal governance. The
settlement presumed a unifying compact, of course, but at a more
modest level of consensus, namely agreement on the moral principles
by which the civil polity is to make political decisions.
Those against religious establishment were for religious
voluntaryism. The disestablishment of the Anglican church in the
South and the disestablishment of Congregationalism in New
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England came in the midst of the Second Great Awakening
(1783-1830s). In a sense this second wave of revival finished the
work started by the first, namely, changing how Americans thought
about religion. Religion became more personal and emotional, less
authoritarian, more decentralized, and more focused on guidance in
daily living and less on abstract doctrine. A top-down rule by a
professional class of ecclesiastics was at odds with the growing
American ethos of liberty and individualism and a leveling of social
classes.
By 1833, religious voluntaryism had triumphed over the last
remaining establishment in Massachusetts. The opposition did not
go away, of course. It continued to assert whenever possible the use
of government to endorse the dominant Protestant faith. This was
more successful in communities of fairly homogeneous Protestantism
than it was in major cities, which were busy absorbing immigrants of
diverse faiths. So it must be conceded that the practice of
voluntaryism occasionally lagged behind the principle. Nevertheless,
for over a century the matter of keeping church and state in their
proper spheres was the near exclusive province of the states.
In the 1940s and 1950s the United States Supreme Court was at
the vanguard of the rights revolution. Clause by clause the provisions
of the federal Bill of Rights were "selectively incorporated" through
the Fourteenth Amendment and made binding on the states. When
in 1947 the Establishment Clause was incorporated and made
applicable to state and local governments in Everson, the Supreme
Court faced something of a paradox. Unlike other clauses in the Bill
of Rights that have been incorporated, the Establishment Clause was
not about individual ights but about structure. 735 That meant the
clause restrained the national government from interfering with how
the states dealt with the sensitive matter of religion. If Connecticut,
for example, wanted a state church, Congress had no authority to
stop it. Incorporating the Establishment Clause destroyed the
clause's work as a restraint on federal power over states. That left a
clause emptied of much of its original purpose, a vessel needing to be
filled with new meaning about government-church relations at the
state and local level. For that meaning the Supreme Court drew
upon the period of America's state-by-state disestablishment and the
early republic's church-state settlement.
735. See, e.g., authorities cited in notes 3 and 6, supra.
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This was a novation, simultaneously aggressive and bold. It was
aggressive because the Court expanded federal judicial power to the
work of policing state and local government when and where it
touched religion-which happens often and nearly everywhere. The
new and expanded task of the federal judiciary was to restrain the
exercise of civil power in matters inherently religious, whether that
power was being utilized to help or hinder religion. Inherently
religious questions and disputes were reserved to the sphere of
organized religion, a body of law now called church autonomy.
While bold, it was a legal development Americans have, since
Everson, lived with now for almost sixty years. We have simply gotten
used to it. To be sure there are voices on the right that still call for
placing the springs of government behind their faith. And there are
voices on the left seeking to work the levers of government to deny
equal access to religious expression in public fora and to oppressively
regulate (and thus secularize) religious schools and social-service
ministries. We should spurn these efforts and continue to remind all
who will listen of the promise of voluntaryism: a free church and a
limited state has proven best for religion and best for civil
government.
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